The defendant Kassel, the husband of the plaintiff, was lessee of the premises in controversy from May, 1849, to May, 1856, under a lease from a Mr. Devoe, from May, 1856, to May, 1863, under a lease from his executors, and in February took a new lease of them from Miss Devoe and Mrs. Allen for seven years from the first of May last, at the rate of four hundred dollars a year. The plaintiff’s name nowhere appears in such leases, nor is it pretended they were taken in her husband’s name for her benefit, or in pursuance of any agreement between them. It is alleged that she erected certain buildings on said premises with her own means, but not at her husband’s request, or upon any understanding between them.
In March last, Kassel let the front building and a room on the second floor of a rear building on such premises to the defendant Becker, for the rent of six hundred dollars a year, and on the first of May last Becker relet to Kassel the second floor of the front building, for a month, for the sum of ten dollars. On the fourth of May last Kassel assigned the lease of the whole premises to a Mr. Schmitt for the sum of three hundred dollars, being a hundred dollars less than the excess of the rent received by him over that paid to the lessor.
The complaint demands as relief that the defendant Becker surrender up to be canceled any agreement between him and the plaintiff’s husband, and that they account for the rents and profits of the premises since Becker took possession of them. It alleges that for upwards of two years: past the plaintiff’s husband, being a
The Revised Statutes provide that a separation from bed and board perpetually or for a limited time may be decreed between husband and wife (2 R. S., §§ 50, 51) for the abandonment of the latter by the former, and his refusal or neglect to provide for her. They also provide that though a decree for such separation be not made, the court may make such order and decree for the suitable maintenance and support, by a man of his wife and children, out of his property, as the nature of the case renders suitable and proper. (Id., § 55.) This last provision clearly makes the decreeing a suitable support part of the relief in the action, although the main object, to wit : a separation, be not attained. It would be an anomaly for a court to grant relief to a plaintiff, and yet decree that there was no ground for the action, and wholly dismiss it. In all the cases enumerated in the section already referred to, (§ 51,) therefore, the court has power, although refusing a separation, to decree a maintenance. But by the statutory qualification, “ as the nature of the case renders suitable and proper,it was evidently intended that the relief should correspond with the' wrong, and the maintenance of a family left by the husband without any support, under the third subdivision of that section, would be a proper remedy for such abandonment. Where the wrong done by the husband consists solely of such abandonment, which may arise from mere indifference, a separation, which might be necessary in case of the cruel treatment or improper conduct specified in the two prior subdivisions, implying personal malice, would not be indispensable.
The complaint in this case charges also as follows : That the plaintiff’s husband combined with the defendant Becker to defraud the plaintiff of her right in the building in question, and procure her removal from apartments therein occupied by her, and for that purpose he put the defendant Becker in possession of a part of such building whereof the latter now claims to be landlord, and he has resorted to summary proceedings to dispossess the plaintiff ; also that Becker is irresponsible.
Unless the plaintiff has alleged and prima facie established a right' in herself to the legal ownership of the premises in question, or a right of possession to a definite part thereof, or some equity to remain in possession thereof separate from any rights as a wife, I do not regard the summary proceedings taken against the plaintiff’s husband alone as of any importance. The warrant issued on such proceedings would not authorize the officer having it to execute, to eject the plaintiff if she had any separate interest. Even her husband in such case could not dispossess her, and no proceedings against him alone, whether with or without his connivance, would authorize a third person to do so. The warrant issued, it is true, follows liberally the language of the statute to remove all persons from the premises. That, however, would not authorize the removal of any one not named in the proceedings, unless under the control of one named therein, such as
Although the statute prescribes that the warrant shall command the removal of all persons, its whole purport shows there was no intention to violate the constitution, by depriving any one of their rights, without an opportunity of being heard in their defence. The summons first issued is required to have the tenants named in it, (Hill agt. Stocking, 6. Hill, 314; Cunningham agt. Goelet, 4 Denio, 71,) unless he appear without objection, (Sims agt. Humphrey, id., 185,) and it must be delivered to the person to whom it is directed. (2 R. S., 514, § 32, sub. 11.)
The provision that it should require “ any person in possession of the premises, claiming the possession thereof,” to remove or show cause against doing so, was intended to designate the position of the persons who were to be notified, such as subtenants and the like, and not to prescribe the form or effect of the summons. (2 R. S., 513, § 30.) The same class of persons similarly designated are authorized by a subsequent section (§ 34) to controvert the statements in the affidavits on which the summons is issued After a trial the warrant is required to contain a mandate to put the claimant in possession, as previously prescribed. (2 R. S., 515, §40.) But whether before or after trial, it would not justify the removal of parties in possession who had never been heard, and who might claim a right of possession. Under cover of such a proceeding the grossest wrongs might be inflicted.
In this case, however, there is nothing in the complaint or affidavits establishing any right of the plaintiff in the premises, or claim to them, or the possession of any part thereof, independently of any general rights she may have as a wife to a suitable maintenance. Her application of her means to build a house on them, without any understanding with her husband, gives her no right in a lien
The case being thus stripped of the aspect of an action to sustain an equitable right to the lease of the premises in question, or possession of part thereof, brought against the legal owner and a fraudulent grantee, with notice of the rights of the equitable owner, to whom the latter, of course, could never be tenant, (3 Sand., 366,) can only be sustained upon the ground before mentioned, of a proceeding to enforce a maintenance. That right, however, would not give the plaintiff the privilege of selecting a particular portion of her husband’s property and insisting it should be set apart for her. On the contrary, the amount and means of maintenance, and the mode of securing it, are entirely within the discretion of the court.
The order to be entered in the case should specify the ' amendment proposed to be made to the complaint, and may be settled upon two days’ notice.